Elvis, Lady Gaga and a nature-loving drag queen have all found themselves on the wrong end of a trademark fight. Some of them won, some of them lost, but only one of them got offered free ice-cream as compensation.
At the end of last year, a man named Wyn Wylie completed a 160 kilometre hike in full drag attire – voluminous wig, smokey eyeliner, carabiner earrings and all – in order to raise money for 8 environmental and LGBTQ+ nonprofits. The effort raised more than $1 million dollars from almost 35,000 individual donors via its GoFundMe.
This isn’t Wylie’s first time traversing the great outdoors in makeup either; his drag persona, Pattie Gonia, has made a name for herself as an “outdoorsy queen” who raises funds and awareness for environmental issues by taking drag into nature. Here’s the Instagram.
Before I go on with the story, let me clarify a few things that you might not know about drag queens. Drag queens are performance artists – usually men, although there are a few rare female examples – who use clothing, makeup, and exaggerated mannerisms to play with and celebrate femininity. It’s more than just men in women’s clothing, and it’s not about men who want to be women. A drag queen creates a persona with a name and female pronouns and inhabits that persona only when they are performing – which is why I’ll write he/him when referring to Wylie and she/her when referring to Pattie Gonia, his drag persona.
There’s a long tradition of innuendo and parody in drag. You’ll encounter drag personas with names like Minnie Van Driver, Ariel Versace, Cookie Buffet, Farah Moan and Formelda Hyde. Drag queens are also known for doing drag impersonations of celebrities, politicians and even, in some cases, world leaders. As you can imagine, this occasionally gets them into trouble.
Wyn’s persona, Pattie Gonia, was named after Patagonia the place, not Patagonia the outdoor apparel brand. The outdoor apparel brand is the one taking Pattie to court though – for the princely sum of $1.
The company said in the filing that it was responding to Wylie’s application to trademark Pattie Gonia as a brand. This would mean a move from simply using the name Pattie Gonia (something Patagonia hasn’t had an issue with up until now) to potentially selling products and organising events. Patagonia told the BBC “the last thing we wanted was a legal fight with someone who shares our values”.
It’s an unusually tender thing to say to someone you are suing. But then, trademark law has always been one of the stranger corners of the legal world – the place where serious companies argue with total sincerity about whose pun belongs to whom. Before we get to how Patagonia’s dollar fits into all this, it’s worth meeting a few of the more colourful trademark disputes that came before it.
Elvis Presley vs BrewDog
In 2015, the Scottish brewery BrewDog launched a grapefruit IPA called Elvis Juice. Authentic Brands Group – the company that manages Elvis Presley’s name and estate – was not amused. It wrote to BrewDog’s founders, James Watt and Martin Dickie, instructing them to drop the name or else. Watt and Dickie said “try us” and legally changed their own first names to Elvis by deed poll so that they could claim they had named the beer after themselves. A word of caution when arguing with Scottsmen: expect the unexpected.
The UK’s Intellectual Property Office was initially unswayed by the hijinks of the brewers and ruled in favour of the King’s estate in 2017, on the grounds that drinkers might mistake the beer for an official Presley product. However, on appeal, that decision was overturned. The common thread of “Elvis”, the ruling found, was not enough on its own to make anyone think the King had gone into the session-IPA business. Two men (recently) named Elvis won, and they’re still selling Elvis Juice by the crate today.
WWF vs WWF/E
In 2000, the World Wide Fund for Nature (the one with the panda logo) took the World Wrestling Federation (the one with the muscly people in spandex) to the High Court in England over the use of their shared initials – WWF. The Fund had seniority by a wide margin, having registered the letters in 1961, a full 18 years before the wrestling promotion adopted them. The two WWFs had coexisted confusingly but harmoniously for decades, and had even signed an agreement in 1994 under which the Wrestling Federation promised to keep the plain initials (which were used by the Fund) out of its branding.
What broke the peace was the internet. In 1997 the Wrestling Federation launched WWF.com and rolled out a new “scratch” logo that put the letters back on open display. The Fund considered both actions a breach of their agreement. The Federation’s defence was unusual but not without merit: a contract signed in 1994 could not possibly have anticipated the mass adoption of the world wide web, and so, it argued, shouldn’t be held to cover it. Its other line of defence was that no one on earth would ever confuse a wildlife charity with a wrestling show, since nobody was at real risk of mistaking a panda for The Rock.
The court ruled for the Fund, the Court of Appeal ruled for the Fund again, and the Federation was ordered to rebrand, which it did through a marketing campaign titled “Get The F Out” (I promise I’m not making this up). It’s been calling itself World Wrestling Entertainment – or WWE – since then. The pandas, unfussed and unbothered, have shown us that it pays to give an F about your brand.
Lady Gaga vs two ice-cream parlours
If I had a R10 for every time Lady Gaga threatened to take an ice-cream parlour to court for naming a flavour after her, I’d have R20, which feels… anticlimactic. The drama kicked off in 2011, when Gaga’s lawyers sent a cease-and-desist to a London parlour called The Icecreamists, which was selling a £14 scoop of ice-cream made with human breast milk under the name “Baby Gaga”.
There’s a lot to unpack there, so let’s just stick to the legals.
The claim was that the product was deliberately provocative and might damage Gaga’s reputation – an argument made, it should be noted, by a woman who had recently (one year earlier, in 2010) attended an awards show wearing a dress constructed entirely of raw meat.
The flavour did vanish from the menu, but not because of her. Westminster Council had already seized it for health-and-safety testing, and though the ice-cream was cleared a fortnight later (the woman who donated the milk was a registered milk donor and therefore in perfect health), the phrase “health and safety testing” does unhappy things to customers’ brains. Gaga got her result without ever needing to go all the way to court.
In 2015 she was embroiled in an ice-cream related battle again, this time against a maker called The Licktators and their “Royal Baby Gaga” flavour. This one didn’t contain any breast milk (despite what the name alluded). It was launched to mark the birth of Princess Charlotte. Gaga’s team sent a warning. This time the reply was less accommodating. The parlour declined to withdraw anything, noted that “gaga” is among the first sounds most babies make and can hardly belong to one pop star, and offered to send her some complimentary tubs of ice-cream “for chilling out to.” No lawsuit followed. Turns out it isn’t that easy to sue someone once they’ve offered you dessert.
Back to Patagonia
Set against a brewery that renamed its own founders, a wrestling empire outlasted by a panda, and a pop star defeated at least once by frozen dairy, the suit against Pattie Gonia is remarkable mostly for how little it actually wants. Patagonia is asking a court to mark the precise moment a fond tribute becomes a business – the line between borrowing a name out of love and registering it to sell things – and it’s asking as gently as a legal filing will allow.
Pattie Gonia is not a stranger to what Patagonia stands for. She hikes the same mountains, champions the same causes, and named herself, however cheekily, in the same direction. The company knows this, which is why the $1 lawsuit reads less like a demand and more like a hand on the shoulder: we love what you’re doing, truly – just not quite under our name, please.
Whether a court will see it that way is another matter. Trademark law, as we’ve seen, is not sentimental, and it has a habit of turning warm intentions into cold precedent. But of all the ways a billion-dollar brand could come after a drag queen in hiking boots, asking for a single dollar and admitting she shares your values might be the closest the genre gets to a love letter. Pattie will keep her heels. Patagonia will keep its logo. And somewhere between them sits a dollar nobody especially wants, marking the spot where two friends agree to each stay on their own side of the mountain.
About the author: Dominique Olivier
Dominique Olivier uses her love of storytelling and ideation to help brands solve problems.
Her first book, Lessons from Loss, has been published by Penguin Random House.
She is a weekly columnist in Ghost Mail and collaborates with The Finance Ghost on Ghost Mail Weekender, a Sunday publication designed to help you be more interesting.
You can learn more about her work at dominiqueolivier.com and she can be reached on LinkedIn here.
